Note: State liability in respect of a child negligently injured at an early childhood development centre: A critical assessment of BE obo JE v MEC for Social Development, Western Cape
Authors: Brigitte Clark & Willene Holness
Affiliations: Associate Professor, University of KwaZulu-Natal, Honorary Visiting Researcher, Oxford Brookes University; Senior Lecturer, University of KwaZulu-Natal
Source: South African Law Journal, Volume 139 Issue 3, p. 491-510
This case note compares the judgments of the Western Cape High Court, the Supreme Court of Appeal and the Constitutional Court in BE on behalf of JE v MEC for Social Development, Western Cape. It suggests that the conclusion reached by the Western Cape High Court was not only the better decision in terms of a just outcome, but also the right decision when weighing the facts against the applicable statutory framework and case law, including the relevant international law. Furthermore, the case note submits that the approaches of the two higher courts to the wrong fulness inquiry were not in line with a children’s-rights approach and did not consider the state’s duty under international law to protect children’s rights, including the child’s right to play in a safe environment and to education, inclusive of the period from early childhood to birth.